Gujarat High Court

Pathan Jahurmohammadkhan Babarkhan vs State Of Gujarat on 21 February, 2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20400 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1     Whether Reporters of Local Papers may be allowed                 YES
      to see the judgment ?

2     To be referred to the Reporter or not ?                          YES

3     Whether their Lordships wish to see the fair copy                 NO
      of the judgment ?

4     Whether this case involves a substantial question                 NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                PATHAN JAHURMOHAMMADKHAN BABARKHAN
                                 Versus
                        STATE OF GUJARAT & ORS.
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS ADITI S RAOL(8128)
for the Petitioner(s) No. 1
MR ADITYA JADEJA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 21/02/2024

                             ORAL JUDGMENT

1. By way of present petition under Article 226 & 227 of the

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Constitution of India, the petitioner has prayed for the

following reliefs :

"(A) Your Lordships may be pleased to issue a writ of certiorari to quash and set aside the order dated 17.12.2014 passed by the Gujarat Civil Services Tribunal, Gandhinagar in appeal no.128 of 2012;

(B) Your Lordships may be pleased to allow the appeal no.128 of 2012 preferred by the petitioner granting all the prayers prayed for therein;

(C) Your Lordships may be pleased to direct the respondent authorities to promote the petitioner to the next higher post of Assistant Storekeeper and also to the next higher post of Storekeeper with retrospective effect from the date his immediate junior is promoted to these posts with all the consequential benefits, including arrears of pay and allowances and suitable revision of retirement benefits that flow from such promotion;

(D) Your Lordships may be pleased to direct the respondent authorities to restore the petitioner to the post of Junior Clerk with effect from 1.6.1987, the date on which he was reverted from the post to the post of work charge Kharkoon, with all the consequential benefits;

(E) Pending admission and final hearing of the present petition, Your Lordships may be pleased to stay the operation and implementation of the order dated 17.12.2014 passed by the Gujarat Civil Services Tribunal in appeal no.128 of 2012; and

(F) Your Lordships may be pleased to pass any other and/or further order, as deemed fit, in the interest of justice."

2. The brief facts giving rise to the present petition are as

under :

2.1 By office order dated 1.5.1967 from the office of the

Executive Engineer, Workshop Division, Ukai, the petitioner

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was appointed as Work-charge Karkoon in the work charge

establishment of the Workshop Division on a salary of Rs. 91

per month in the pay scale of Rs. 91-3- 130 plus usual

allowances as admissible to the work charge establishment as

per the rules in force from time to time. The petitioner joined

the service on 3.5.1967. The petitioner passed the pre-service

training examination in two trials and thus he was entitled for

promotion to the higher post as and when promotions were

given. It is the say of the petitioner that his case for promotion

as Assistant Storekeeper against the vacancy in Ukai Division

no. VII, Ukai was recommended by the Executive Engineer to

the circle office, vide his letter no. VII/WEC/2516 dated

31.3.1978. However, the petitioner's case was not considered

for promotion to the post of Assistant Storekeeper.

2.2 The petitioner made several representations to the

respondent authorities regarding the injustice meted out to

him, but nothing positive had been forthcoming. Finally, the

petitioner retired on superannuation on 30.04.2003 as a Work-

charge karkoon.

2.3 It is the say of the petitioner that as could be seen from

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the letter dated 26.6.2012, the State Government admitted

that promotion of those who were juniors to the petitioner to

the posts of Assistant Storekeeper was made by mistake and

thus these promotions were irregular. It was further stated

therein that these promotions were subsequently regularized.

In spite of all this, the State Government rejected the request

of the petitioner for promotion to the post of Assistant

Storekeeper on the ground that such irregular promotions

cannot be considered as a precedent in justification of the

claim of the petitioner for promotion to the post of Assistant

Storekeeper. It is relevant to state here that the

illegal/irregular promotions of those who were junior to the

petitioner were not only regularized but also further

promotions to the next higher posts of Storekeeper were

ordered, vide office order dated 3.5.1983. The petitioner was

not only denied of his rightful promotion to the post of

Assistant Storekeeper, but also was unlawfully reverted from

the post of Junior Clerk on the wrong plea that he had not

passed the pre-service training examination, whereas he had,

in fact, passed the pre-service training examination in 1987.

2.4 Being aggrieved by the impugned letter dated 26.6.2012

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from the respondent no. 1, the petitioner approached the

Gujarat Civil Services Tribunal, by way of preferring an appeal

no. 128/2012. By its order dated 17.12.2014, the Gujarat Civil

Services Tribunal dismissed the aforesaid appeal no. 128 of

2012 preferred by the petitioner.

2.5 Being aggrieved and dissatisfied with the order dated

17.12.2014, the petitioner, by way of this petition under

Articles 226 and 227 of the Constitution of India approach this

Court for the relief/s as aforesaid.

3. Heard learned senior advocate Mr.Shalin Mehta assisted

by learned advocate Ms.Aditi S. Raol, appearing on behalf of

the petitioner and learned Assistant Government Pleader

Mr.Aditya Jadeja, appearing on behalf of the respondent - State

Authorities.

4. Learned senior advocate Mr. Mehta for the petitioner has

submitted that the impugned order dated 17.12.2014 passed

by the Gujarat Civil Services Tribunal in appeal no.128 of 2012

preferred by the petitioner suffers from the mistake of both law

and fact apparent on the face of the record. He has submitted

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that the petitioner was appointed as Work-charge karkoon in

the office of the respondent No.3 on 01.05.1967 and

thereafter, since the colleague of the petitioner were promoted

as Assistant Storekeeper, the petitioner had also requested the

department to consider his case for promotion to the post of

Assistant Storekeeper. However, the respondents have

rejected the claim of the petitioner and therefore, the

petitioner had approached the Gujarat State Legal Service

Authority for redressal of his grievance. He has submitted that

after considering the submissions made on hehalf of the

parties, the arbitrator came to the conclusion that there was

no possibility of any settlement and therefore, the application

of the petitioner was disposed of vide order dated 28.11.2005.

4.1 Learned senior advocate Mr.Mehta has further submitted

that though the petitioner was similarly situated to the other

employees who were granted promotion, the case of the

petitioner was not considered and considering the

discriminatory treatment to the petitioner as in the case of

colleague of the petitioner, the benefits were extended and

they were promoted to the post of Assistant Storekeeper,

however, the petitioner was not extended any such benefits

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and was not promoted to the post of Assistant Storekeeper. He

has further submitted that the petitioner has as such urged

before this Court the illegality and unequality amongst the

employees which cannot be permissible in the eye of law. He

has submitted that the Gujarat Civil Service Tribunal ought to

have appreciated the submissions made by the petitioner and

held that non-consideration of the case of the petitioner by the

respondent authorities was discriminatory and violative of

Articles 14, 16 and 21 of the Constitution of India. He has

submitted that this was creating inequality amongst the

employees and therefore, the action on the part of the

respondent authorities is arbitrary and unjust and the same

deserves to be quashed and set aside and the respondents be

directed to give promotion to the petitioner at par with other

employees who were promoted to the post of Assistant

Storekeeper.

5. As against that, the learned AGP Mr.Aditya Jadeja,

appearing for the respondent authorities has vehemently

opposed the present petition and submitted that none of the

fundamental rights of the petitioner has been violated because

of any action or inaction on the part of the respondent

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authorities, and therefore, the present petition is not

maintainable in law and the same deserves to be dismissed.

Learned AGP Mr.Jadeja has referred to the averments made in

the affidavit-in-reply filed on behalf of the respondent No.3 -

Executive Engineer, more particularly, paragraphs 5 to 9 which

reads as under :

"5. It is submitted that the alleged aggrieved petitioner herein was appointed on the post of Work-charge Karkoon by an office order dated 01.05.1967. It is pertinent to note that the petitioner's said post of a Work-charge Karkoon is not a feeder cadre to the promotional post of that of an Assistant Storekeeper. In fact, the appointment to the post of Assistant Storekeeper is done through nomination and not by promotion. At the relevant point of time when the petitioner was accorded an opportunity of being appointed as a Junior clerk in the temporary establishment, for the very first time; which is an equivalent post to that of an Assistant Storekeeper, the petitioner turned down the said opportunity on his personal reservation that he wanted his appointment on the post of an Assistant Storekeeper and not a Junior clerk. Therefore, at the relevant point of time there were no vacancies in the post of Assistant Storekeeper and thus an appointment to the said post could not have been made. The Recruitment Rules for the post of an Assistant Storekeeper are enshrined in the Public Works Department's Resolution dated 24.11.1958.

6. It is submitted that the petitioner was accorded the appointment as a Junior clerk in the Temporary establishment by an order dated 08.02.1978 while the vacancies for the said post of an Assistant Storekeeper were opened to be filled in vide a letter dated 13.06.1978 from the Office of the Superintending Engineer, Ukai Circle (Mech.). The said posts of Assistant Storekeeper were filled in vide an order dated 03.10.1978. Thus, it is pertinent to note that when the vacancies for filling up of the said posts of Assistant Storekeeper were opened; the petitioner was already appointed as a Junior clerk and therefore, he could not have been accorded an opportunity to be appointed as a storekeeper which is an equivalent post.

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7. It is submitted that the last representation made by the petitioner dated 05.09.1979 to the Superintending Engineer, Ukai Circle (Mech.) Ahmedabad could not have been considered for the very reason that the petitioner was at that point of time, already discharging his duties on the post of Junior Clerk vide an office order dated 13.07.1979.

8. It is respectfully submitted the claim of the petitioner, that he had cleared the pre-service training examination for the post of an Assistant Storekeeper in the second attempt; is not true. It is pertinent to note that the petitioner had cleared the pre-service training examination in the 7th attempt. The details pertaining to the same are reflected in the letter addressing the Superintending Engineer, Ukai circle (Mech.) Ahmedabad by the Section Officer, Sardar Patel Institute of Public Administration, Ahmedabad.

9. It is submitted that the said pre-service examination has to be cleared within a period of 3 years not exceeding a maximum of 3 attempts. Reliance to the said criteria is placed vide Narmada, Water Resources, Water Supply and Kalpasar Department's notification dated 31.03.2009. Moreover, it is pertinent to note that the candidates who do not attempt the scheduled exam are supposed to be considered as failed in the said examination conducted. It is respectfully submitted that the same transpires from Sardar Patel Institute of Public Administration's notification dated 21.09.1987."

5.1 Learned APP Mr.Jadeja has therefore, submitted that

considering the facts and submissions made hereinabove, it is

clear that the there is no illegality or arbitrariness committed

on the part of respondent authorities and that the respondent

authorities have acted in accordance with law and hence, the

present Petition is required to be dismissed.

6. I have heard the learned advocates appearing for the

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respective parties and perused the material placed on record.

In the present petition, the petitioner is urging against the

illegal and unequality amongst the others, which cannot be

permissible in the eye of law. However, this Court had issued

notice to the respondents and in response thereto the

respondents have filed their affidavit which makes it clear that

since that was a mistake committed by the department and it

was clarified that it was not to be treated as precedent since it

was a feeder cadre post and for appointment of Assistant

Storekeeper, the rules are different then the rules which are

applicable for the appointment of Work-charge Karkoon and

therefore, the petitioner cannot seek the benefits as prayed for

in the present petition.

6.1 At this stage, it would be appropriate to refer to the

decision of the Division Bench of this Court in case of State of

Gujarat Vs. Giganbhai Nathubhai Karotara in Letters Patel

Appeal No.718 of 2023, wherein, it has been observd and held

as under :

"5.8 The contention could hardly stand valid that since in another district, the similarly situated persons were treated in particular fashion, the petitioners should also be treated accordingly. The petitioners could not involve Article 14 in negative way in their favour. It is already reiterated that guarantee of equality before the

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law is a positive concept and cannot be enforced in negative manner.

5.8.1 If the settled law is to be reiterated, in State of U.P. vs. Rajkumar Sharma[(2006) 3 SCC 330], it was observed in paragraph 15, that if the State has committed the mistake, it cannot force to perpetuate the same mistake. In State of West Bengal vs. Debosis [(2011(14) SCC 187], following was observed by the Supreme Court,

"It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459, Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of India vs. International Trading Co. - 2003 (5) SCC 437, and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94."

(para 26)

5.8.2 In Ford Corporation of India vs. Jagdish Balaram Bahira[(2017) 8 SCC 670], the Supreme Court observed that 'Administrative circulars and government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles". Also in Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh [(2021) 11 SCC 401], in which the principle was succinctly stated by the Apex Court,

"The concept of equality cannot be pressed to commit another wrong. The concept of equality enshrined in Article 14 of the Constitution is a positive concept. It is not a concept of negative equality. It cannot be used to perpetuate an illegality. Equity cannot be applied when it arises out of illegality. The doctrine of equity would not be attracted when the benefits were conferred on the basis of illegality, as held in Usha Mehta v. Government of Andhra Pradesh [(2012) 12 SCC 419], John Vallamattom v. Union of India[(2003) 6 SCC 611], General Manager, Uttranchal Jal Sansthan v. Laxmi Devi[(2009) 7 SCC 205], State of West Bengal v. Debashish Mukherjee [AIR 2011 SC 3667]. (para 95)

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5.8.3 Therefore, the petitioners had no legs to stand to contend that since others are granted the quarry lease, their case should also be considered in like manner. The benefit wrongly given or obtained cannot be a ground to invoke the equality clause. This was stated by the Supreme Court in Basawaraj and Another Vs. Special Land Acquisition Officer, [(2013) 14 SCC 81], "Article 14 does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated."

6.2 The Hon'ble Apex Court in the case of State of U.P. and

Others Vs. Rajkumar Sharma and Others, reported in [2006] 3

SCC 330, wherein, in paragraph 15, it has been observed and

held as under :

Head Note C. Service Law - Appointment - right to - Parity ground - Appointments made by mistake or wrongly in other cases - Claim based upon - Held, the said appointments do not confer any right on others - Art. 14 does not envisage negative equality - If the State committed the mistake it cannot be forced to perpetuate the same mistake - Constitution of India - Arts. 16 & 14

"15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See: Snehprabha v. State of U.P. & Ors. (AIR 1996 SC 540), Secretary, Jaipur Development Authority, Jaipur, v. Daulat Mal Jain & Ors. (1997 (1) SCC 35), State of Haryana and Ors. v. Ram Kumar Mann (1997 (3) SCC 321), Faridabad C.T. Scan Centre v. D.G. Health Services & Ors. (1997 (7) SCC 752), Jalandhar Improvement Trust, V. Sampuran Singh (AIR 1999 SC 1347), State of Punjab and Others v. Dr. Rajeev Sarwal (1999 (9) SCC 240), Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors.

(2003 (3) SCC 548), Union of India and Anr. v. International Trading Co. and Anr. (2003 (5) SCC 437) and Kastha Niwarak G.S.S.

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Maryadit, Indore v. President, Indore Development Authority (JT 2006 (2) SC 259)."

6.3 In view of the above decisions therefore, it is clear that

the petitioner has no legal or vested rights as in the case of his

colleague who was wrongly appointed as Assistant Storekeeper

by mistake by the department and that does not confer any

right to the present petitioner and also Article 14 of the

Constitution does not envisage negative equality, and if the

State committed the mistake it cannot be forced to perpetuate